' CH. MUHAMMAD MASOOD JAHANGIR, J.--- This regular first appeal is directed by the appellant/defendant (hereinafter to be referred as appellant) against the judgment and decree dated 16.6.2009 passed by the learned District Judge, Sahiwal whereby the suit filed by the respondent/plaintiff (hereinafter to be referred as respondent) under Order XXXVII, rules 1 and 2 of the Civil Procedure Code, 1908 seeking to recover an amount of Rs,250,000/-was decreed.
2. Briefly, the facts are that the respondent filed a suit under Order XXXVII, rules 1 and 2 of the Civil Procedure Code, 1908 for recovery of Rs,250,000/- against the appellant with the assertion that he was known to the appellant for a considerable time and on the basis of mutual trust, he lent an amount of Rs,250,000/- to him for a period of six months vide promissory note dated 09.5.2002, but the appellant refused to repay the same, hence the respondent was constrained to file the suit.
3. The appellant after seeking leave to appear and defend the suit filed written statement before the learned trial court and contested suit of the respondent on the ground that he had neither taken any loan from the respondent nor executed any promissory note and that the alleged promissory note was a fictitious, forged and fabricated document, which was got prepared on the instigation of brother of the respondent, who was posted as Manager, National Bank of Pakistan, Grain Market, Sahiwal.
4. The .Learned trial court captured the disputed area of facts by framing the following issues:-
1. Whether the plaintiff has no cause of action? OPD
2. Whether the defendant has executed the pronote and the receipt dated 9.5.2002? OPP
3. Whether the suit is bad in view of preliminary objection No,3? OPD
4. Whether the plaintiff is entitled to the recovery of Rs,2,50,000/- as prayed for? OPP
5. Whether the suit is liable to be dismissed with special costs? OPD
6. Relief.
5. To prove his posture, the respondent produced Nadeem Ahmad, one of the attesting witnesses of promissory note as well as receipt as PW2, Altaf Hussain (PW3), the scribe of the promissory note and respondent himself appeared as PW4 whereas Muhammad Hanif, Officer of MCB, Sahiwal was also produced by the respondent as PW1. Moreover, in documentary evidence, promissory note Exh.P1 and receipt Exh.P2 were duly received by the learned trial court on the file. On the other hand, the appellant himself appeared as DW1 only. The learned trial court after having appraised the evidence on record proceeded to decree the suit vide judgment and decree referred in para-1 ante, mainly, on the ground that pronote Exh.P1 attained presumption of truth. Being aggrieved, the appellant has challenged the impugned judgment and decree by filing the instant appeal.
6. It is argued by the learned counsel for the appellant that the impugned judgment and decree passed by the learned trial court is result of misreading and non-reading of evidence, who failed to take into consideration that one of the attesting witnesses, Haji Muhammad Aslam was not produced whereas the other attesting witness Nadeem Ahmad PW2 did not support the stance of the respondent, thus, the respondent failed to prove his stance by providing sufficient evidence on the record, therefore, his suit was liable to be dismissed. He has lastly prayed for acceptance of the instant appeal, setting aside of the impugned judgment and decree and dismissal of the suit filed by the respondent.
7. Conversely, the learned counsel for the respondent has supported the impugned judgment and decree and prayed for dismissal of the instant appeal.
8. Arguments heard and record perused.
9. The appellant specifically denied the execution of the pronote (Exh.P1) as well as receipt (Exh.P2) and the initial onus was on the shoulders of the respondent to prove the payment of loan consideration besides the valid execution of the pronote and receipt (Exh.P1 and Exh.P2).
Admittedly, only one alleged attesting witness Nadeem Ahmad as PW2 was produced by the respondent, who during the course of examination-in-chief, deposed that Abdul Waheed respondent had not paid Rs,250,000/-to Gulzar Mehmood appellant in his presence. He further stated that Haji Muhammad Aslam did not sign the pronote (Exh.P1) before him, while the other witness Haji Muhammad Aslam was not put in the witness-box by the respondent to establish the valid execution of pronote as well as receipt (Exh.P1 & Exh.P2). It is, no doubt, well settled that a pronote is not required to be attested by any witness, but it is equally true that the receipt attached therewith to be effective must be attested by two witnesses and that the said witnesses are also required to be produced to prove the same.
10. The argument of the learned counsel for the respondent that Haji Muhammad Aslam, the second marginal witness of the receipt (Exh.P2) was produced by the respondent on many occasions before the learned trial court for recording of his statement, but his statement could not be recorded due to delaying tactics played by the appellant, who subsequently proceeded abroad and in such eventuality the learned trial court was justified not to draw inference against the respondent, is misconceived. The trial court's record of the suit filed by the respondent is available with this Court, the perusal whereof reveals that issues were framed by the learned trial court on 16.4.2003 and thereafter the proceedings were adjourned for production of evidence of the respondent on different dates i.e. 8.5.2003, 28.5.2003, 18.6.2003, 21.7.2003, 9.9.2003, 30,9.2003 and 28.10.2003, but the evidence could not be produced by the respondent. On the said dates of hearing, only one witness Muhammad Hanif, official of MCB, Sahiwal was brought by the respondent but his statement also could not be recorded. Then respondent moved an application under Order XIII, rule 3 of the Civil Procedure Code, 1908 for production of documents, which was disposed of by the learned District Judge, Sahiwal vide order dated 18.11.2003 and case was fixed for evidence of the respondent. Thereafter statement of PW1 was got recorded on 18.11.2003 and again on 16.12.2003, 20.1.2004, 24.2.2004, 6.4.2004, 6.5.2004 and lastly on 11.5.2004 the evidence could not be produced by the respondent whereupon the case was dismissed on account of default on the said date. However, the suit was restored vide order dated 27.1.2005 and thereafter evidence could not be recorded for the next four dates, rather evidence of PWs 2 to 4 was got recorded on 25.5.2005 and at this stage counsel for the respondent closed the affirmative evidence of the respondent. Then the case was adjourned for the evidence of the appellant. Thereafter respondent moved an application for production of Haji Muhammad Aslam, attesting witness of receipt (Exh.P2), in additional evidence, which was allowed by the learned trial court on 28.7.2006 and case was adjourned for 05.8.2006 for recording of statement of said witness. Then only on the one date of hearing i.e. 5.8.2006 Haji Muhammad Aslam allegedly appeared before the learned trial court when counsel for the appellant was not available on account of his pre-occupation before this Court. Thereafter on the next dates of hearing i.e. 4.8.2006, 10.10. 2006, 12.12. 2006, 7.
2. 2007, 28.2.2007, 4.4.2007, 8.5.2007, 6.6.2007, 11.7.2007 and 16.7.2007, the said witness could not be produced and the learned counsel for the respondent got recorded his statement that he did not want to produce any further evidence. However, he reserved the right of the respondent for production of rebuttal evidence and the learned trial court fixed the case for evidence of the appellant, which was duly got recorded. Then the learned trial court on the basis of available evidence proceeded to decree the suit. The case diary maintained by the learned trial court itself negates the conclusion drawn by the said court through the impugned judgment that statement of Haji Muhammad Aslam could not be recorded due to lapse on the part of the appellant. It was bounden duty of the respondent to produce the attesting witness of the receipt (Exh.P2), but he was not produced for a considerable time. This omission on the part of respondent is highly fatal in so far as proof of the pronote as well as receipt (Exh.P1 & P2) is concerned.
11. It is also settled principle that the scribe of a document cannot be treated as an attesting witness particularly when he never deposed that the amount of loan was paid in his presence. The scribe of the pronote also deposed that Haji Muhammad Aslam one of the attesting witnesses did not sign before him on the pronote as well as receipt (Exh.P1 and Exh.P2). It is also note-worthy that pronote as well as receipt (Exh.P1 and Exh.P2) were scribed by a layman and not by a license holder deed writer whereas the licenses are issued by the competent authority to the skilled deed writers so that the interests and rights of the parties could be secured as the license holder deed writers are required to maintain the registers to make entry of the document and also to obtain signatures/thumb impressions of the executants against the said entry in the registers to cross check the authenticity of the signatures/thumb impression of the executants found to have been affixed on the relevant instruments. In the present case no such documentary evidence of corroborative nature in the shape of registers of deed writer is available on the record to support the version of the respondent and in the absence of such evidence inference has to be drawn against the respondent/ beneficiary.
12. There is left only statement of Nadeem Ahmed PW2, who being witness of respondent in his statement-in-chief specifically stated that neither the other attesting witness signed the pronote as well as receipt (Exh.P 1 and P2) nor any loan consideration was paid by the respondent to the appellant in his presence. No doubt, the learned trial court under Article 150 of the Qanun-e- Shahadat Order, 1984 allowed the counsel for the respondent to cross examine the said PW, who conducted lengthy cross-examination, but nothing favourable could be gathered therefrom. The argument of the learned counsel for respondent that PW2 was declared as hostile witness by the learned trial court and respondent was not bound by his statement, is also without any substance as by now it is well settled principle that such a witness would not necessarily be declared a hostile witness for the reasons that he was unfavourable to the party calling him and he was not desirous of telling the truth. In order to ascertain as to whether a witness is desirous or not of telling the truth, the Court may allow conducting of cross-examination by the party, who has called him as witness.
The necessary corollary would be that there can be no reason that why a witness should be declared hostile simply because a portion of his statement goes against the party, who called him.
If at all a portion of his statement is not in consonance with the deposition made by other witnesses, such witness would not be unnecessarily treated as hostile witness and permitted to be cross-examined. A witness is declared hostile when he resiles from the material parts of his earlier statement. It is not safe to rely upon the testimony of such witness, but in the instant case, PW2 was never examined on any previous occasion. Moreover, the respondent is bound by statement of his own witness and there are also contradictions in the statement of respondent being PW4, who deposed that loan amount was borrowed by the appellant in presence of the attesting witnesses, but one of the attesting witnesses was not produced by the respondent and the other (PW2) deposed that no consideration was paid in his presence, hence legally the inference was to be drawn against the party who produced the said witness.
13. No doubt according to section 118 of the Negotiable Instrument Act, 1881 certain presumptions are attached to the negotiable instrument, which include that every negotiable instrument was made or drawn of consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed negotiated or transferred for consideration, that every negotiable instrument bearing a date was made or drawn on such date but the said presumption is rebuttable and evidence adduced by the respondent is not sufficient to hold that disputed amount was paid and pronote and receipt (Exh.P1 & Exh.P2) were duly executed. The respondent has miserably failed in this regard by bringing on record convincing and cogent evidence and the learned trial court erred in law while decreeing the suit through the impugned judgment and decree, which is a classical example of misinterpreting the evidence on record and cannot be sustained in the eye of law.
14. Consequently, the instant appeal is accepted, impugned judgment and decree dated 16-6- 2009 is hereby set aside and the suit filed the respondent is dismissed with costs throughout.